Opinion Number. 87



Key Legislation

ARMY ACT (IMP.), ss. 122, 176, 177, 190

The Minister for Defence

In this matter I advised, on 2 June 1902(1), that neither the Constitution, the Letters Patent constituting the office of Governor-General, nor the Commission of His Excellency, constituted an authority from His Majesty to convene or confirm the findings of general courts-martial under the Army Act, but that the Governor-General was a 'qualified officer' under section 122 of the Army Act to whom a warrant for that purpose might be issued.

A telegraphic despatch was accordingly sent to the Secretary of State for the Colonies, asking that such a warrant should be issued to His Excellency. The following telegraphic despatch, dated 5 July 1902, has been received in reply:
Referring to your telegram of 14 June, Judge Advocate General points out that section 122 Army Act only authorises issue of court-martial warrant to Governor of colony if he commands bodies of regular forces. Secretary of State for War, therefore, regrets cannot accede to request.

Upon this despatch the Military Commandant has minuted:
Noted. I assume that the Governor-General is not recognised as 'Governor of a colony' in the terms of the Army Act section 122. It seems a legal point which the lay mind cannot quite grasp.

The Minister for Defence asks to be advised on the matter.

I gather that the Judge Advocate General's point is, not that the Governor-General is not the 'Governor of a colony' but that he does not command any body of regular forces.

The words in section 122 are 'a Governor of any colony on whom the command of any body of regular forces may be conferred by Her Majesty'.

The Commission of the Governor-General appoints him to be 'Our Governor-General and Commander-in-Chief in and over the Commonwealth of Australia'.

By section 190 of the Army Act the expression 'regular forces' is defined to mean:
Officers and soldiers who by their commissions, terms of enlistment, or otherwise, are liable to render continuously for a term military service to Her Majesty in any part of the world, including, subject to the modifications in this Act mentioned, the Royal Marines and Her Majesty's Indian forces, and the Royal Malta Artillery, and subject to this qualification that when the reserve forces are subject to military law such forces become during the period of their being so subject part of the regular forces.
See also sections 176 and 177 of the Army Act.

I am of opinion:

  1. That the permanent forces in each of the States are 'regular forces' within the meaning of the Army Act.
  2. That even if the Governor-General were not for the time being in command of any body of regular forces, he is still, by virtue of his Commission, the Governor of a colony on whom such command 'may be conferred by His Majesty', and therefore that he is a 'qualified officer' under section 122 of the Army Act.

I would suggest that the Secretary of State for the Colonies be informed of this opinion.

[Vol. 2, p. 152]

(1) Opinion No. 68.